258E Guideline 3:05: Standard and Burden of Proof for c. 258E Order

Part of the Guidelines of Judicial Practice: Harassment Prevention Proceedings.

Guideline 3:05

At the ex parte hearing, the plaintiff must prove by a preponderance of the evidence that there is a substantial likelihood of immediate danger of harassment.

“Harassment” is defined under G.L. c. 258E, § 1 as either:

• One act by which the defendant:
  1. by force, threat or duress causes another to involuntarily engage in sexual relations; or
  2. engaged in conduct that would meet the definition of:
     • G.L. c. 265 § 13B: Indecent Assault and Battery on Child under fourteen
     • G.L. c. 265 § 13F: Indecent Assault and Battery on Person with Intellectual Disability
     • G.L. c. 265 § 13H: Indecent Assault and Battery on Person over Fourteen
     • G.L. c. 265 § 22: Rape
     • G.L. c. 265 § 22A: Rape of a Child by Force
     • G.L. c. 265 § 23: Rape and Abuse of a Child (“Statutory Rape”)
     • G.L. c. 265 § 24: Assault with Intent to Rape
     • G.L. c. 265 § 24B: Assault of a Child with Intent to Rape
     • G.L. c. 265 § 26C: Enticement of a Child
     • G.L. c. 265, § 43A(b): Distribution of Nude or Sexual Images
     • G.L. c. 272 § 3: Drugging for Sexual Intercourse
• Stalking or Criminal Harassment in violation of G.L. c. 265, § 43 or § 43A(a); or,
• Civil harassment, which is three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.

Commentary

The regular civil standard of proof, preponderance of the evidence, should be applied. The plaintiff bears the burden of proof. Jones v. Gallagher, 54 Mass. App. Ct. 883, 890 (2002). See also A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 274 (2017).

One Act of Sexual Violence or Distribution of Nude or Sexual Images

One act of sexual violence may constitute a basis for a c. 258E order. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599 (2015). “Proof that the defendant intended to instill fear, and in fact did so, would be wholly unnecessary.” Id. The plaintiff need only prove one of the crimes enumerated in the statute, as detailed above, by a preponderance of the evidence. Id. at 599-600.

Additionally, one act of distributing nude or sexual images in violation of G.L. c. 265, s. 43A(b) may constitute a basis for a c. 258E order. This offense does not require three acts; one act of such conduct would be sufficient to find a violation of § 43A(b). If the plaintiff proves by a preponderance of the evidence that the defendant violated § 43A(b), proof of fear is not necessary.

“By force, threat or duress causes another to engage involuntarily in sexual relations”

The term “sexual relations” is not further defined in G.L. c. 258E, nor is it defined in G.L. c. 209A. “It is, however, broadly defined in G.L. c. 268, § 21A, which criminalizes sexual relations between employees of correctional institutions and inmates, as ‘intentional, inappropriate contact of a sexual nature, including, but not limited to conduct prohibited by [various enumerated criminal sexual offenses].’ [W]e do not believe that the Legislature intended to define ‘sexual relations’ so narrowly as to encompass only acts of sexual intercourse, where the statute seeks to protect victims from further sexual abuse and where it has been defined broadly in another chapter of the General Laws.” M.G. v. G.A., 94 Mass. App. Ct. 139, 142 (2018) (construing meaning of sexual relations under c. 209A). In considering whether the act was accomplished by “force,” as with cases of rape, the force applied may, depending on the circumstances, be constructive force, as well as physical force, violence, or the threat of bodily harm. See id. at 142-143. See Commonwealth v. Caracciola, 409 Mass. 648, 653 (1991).

The crimes of Stalking or Criminal Harassment

If seeking an order on the basis of stalking or criminal harassment under G.L. c. 265, §§ 43 or 43A(a), the plaintiff must prove the elements of the crimes of stalking or criminal harassment by a preponderance of the evidence. This requires, at a minimum, that “‘(1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, willfully and maliciously.’” A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 276 (2017), quoting Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). Stalking requires additional proof that the defendant made a threat with the intent to place the person in imminent fear of death or bodily injury. G.L. c. 265, § 43. See Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 251–52 (2021).

Civil Harassment

Under G.L. c. 258E, §1, civil harassment requires (1) three or more acts of harassing conduct that (2) is willful and malicious; (3) is aimed at a specific person with intent to cause fear, intimidation, abuse or damage to property; and (4) does in fact cause fear, intimidation, abuse or damage to property.

1. Three or more acts: Chapter 258E requires three or more acts. One continuous event over a very brief period of time will not be considered separate acts. See F.K. v. S.C., 481 Mass. 325, 333 (2019) (“one continuous act cannot be divided into multiple discrete acts”; individual statements within a song written by defendant were not separate acts of harassment within the meaning of G.L. c. 258E, § 1); Smith v. Mastalerz, 467 Mass. 1001, 1001 (2014) (driving by home three times “within a very short period of time” constituted only one act of civil harassment); Orla O. v. Patience P., 100 Mass. App. Ct. 126, 128 (2021) (c. 258E requires three separate acts, not one continuous act occurring “without any temporal or material pause or interruption”).
2. Willful and malicious conduct: The statute requires both willful and malicious conduct. See O'Brien v. Borowski, 461 Mass. 415, 420 (2012). “Malicious,” as defined in G.L. c. 258E, § 1, is “characterized by cruelty, hostility or revenge.” Willful conduct is intentional rather than accidental: the actor must intend both their conduct and its harmful consequences. See Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). To be willful, the acts must be committed with “the intent to cause fear, intimidation, abuse or damage to property.” G. L. c. 258E, § 1.
3. Aimed at a specific person: The acts must be “aimed at a specific person.” O’Brien v. Borowski, 461 Mass. at 420. The plaintiff must “establish, at the very least, that the defendant intended to target the victim with the harassing conduct on at least three occasions.”Commonwealth v. Welch,444 Mass. 80, 90 (2005). See also DeMayo v. Quinn, 87 Mass. App. Ct. 115, 117 (2015). “In determining whether acts of harassment are directed at a person, we look not only to statements and conduct of the defendant but to the nature of the act and the natural consequence of the act.” Commonwealth v. Brennan, 481 Mass. 146, 152 (2018) (defendant directed conduct at both husband and wife when he placed GPS devices on their vehicles). See also Commonwealth v. Johnson, 470 Mass. 300, 312-313 (2014) (defendant’s act of posting on Craigslist was directed at victims as it ensured that victims would be harassed by others; it was the “equivalent of the defendants recruiting others to harass the victims”).
4. “Does in fact cause fear, intimidation, abuse or damage to property:” The Plaintiff must show that, for each act, the defendant intended to cause fear, intimidation, abuse, or damage to property. See O’Brien v. Borowski, 461 Mass. at 426 n. 8. In determining whether these three acts did in fact cause fear, intimidation, abuse, or damage to property, “the fact finder must look to the cumulative pattern of harassment, and need not find that each act in fact caused fear, intimidation, abuse, or damage to property.” Id.

“In the context of a civil order, the test is a subjective one; if all of the other elements are present, it is sufficient to show that the harassment actually caused fear, intimidation, or abuse to the plaintiff, even if a reasonable person in the plaintiff's situation would not have been so affected.” Petriello v. Indresano, 87 Mass. App. Ct. 438, 444-445 (2015), citing O'Brien v. Borowski, 461 Mass. at 420.

“Abuse” is defined as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.” G.L. c. 258E, § 1.

“Intimidation” is not defined within the statute. Under c. 258E, the categories of constitutionally unprotected speech that may qualify as harassment are limited to two: fighting words and true threats. See Van Liew v. Stansfield, 474 Mass. 31, 37 (2016), citing O’Brien v. Borowski, 461 Mass. at 425. “‘Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.’” O’Brien v. Borowski, 461 Mass. at 425, quoting Virginia v. Black, 538 U.S. 343, 360 (2003). Thus, in order to constitute intimidation under c. 258E, if the conduct is speech, that speech must constitute true threats or fighting words. The “threats cannot be threats to do just any kind of harm; they must be intended to cause ‘fear of physical harm’ or … ‘physical damage to property.’” A.R. v. L.C., 93 Mass. App. Ct. 758, 760 (2018). See also C.E.R. v. P.C., 91 Mass. App. Ct. 124, 128 (2018); Commonwealth v. Delima, 94 Mass. App. Ct. 1124 (2019) (unpublished) (“regardless of whether the defendant's speech constituted intimidation, it could not come within the c. 258E definition of ‘harassment’ unless it satisfied the definition of either ‘fighting words’ or ‘true threats’”; defendant's statement that she had to call DCF regarding plaintiff, coupled with plaintiff’s receipt of an allegation of abuse from DCF shortly thereafter did not qualify as “intimidation” as it was neither a true threat or fighting words). Even if the “intimidating” behavior is an act alone and not speech, it must “‘cause the victim to fear [physical violence or damage to property] now or in the future and evince intent on the part of the speaker or actor to cause such fear; the consistent element required is an intent to cause fear.’” Gassman v. Reason, 90 Mass. App. Ct. 1, 8 (2016), quoting O’Brien v. Borowski, 461 Mass. at 425.

Civil Harassment Examples:

Conduct sufficient to constitute Civil Harassment: J.C. v. J.H, 92 Mass. App. Ct. 224, 228-230 (2017) (threatening text messages and following plaintiff); V.J. v. N.J., 91 Mass. App. Ct. 22, 25-26 (2017) (over course of three years, passenger grabbed bus driver, called driver offensive names and threatened her job, told driver that police would have to remove him from bus and that he would be there every day); A.T. v. C.R., 88 Mass. App. Ct. 532, 535-536 (2015) (videotaped sexual comment made during FaceTime video chat, threat to “make [plaintiff’s] life a living hell” if she showed the video to anyone, the expressed desire to punch the plaintiff in her breasts and public recounting of sexual fantasy about plaintiff qualified as acts of harassment). See also T.E. v. S.B, 100 Mass. App. Ct. 1132 (2022) (unpublished) (dead rat left next to plaintiff’s car while parked in his driveway; verbal altercation after plaintiff saw defendant parked near his home; and incident where plaintiff saw defendant’s car enter his driveway after the issuance of the ex parte order were qualifying acts).

Conduct insufficient for Civil Harassment: Van Liew v. Stansfield, 474 Mass. 31, 38-39 (2016) (defendant publicly accusing plaintiff of being corrupt and a liar and, during telephone call, loudly calling plaintiff uneducated and stupid were not fighting words or true threats); F.W.T. v. F.T., 93 Mass. App. Ct. 376, 379-380 (2018) (flying drones over or trespassing onto property to take video of a worksite); C.E.R. v. P.C., 91 Mass. App. Ct. 124, 127-128 (2017) (tenants played loud music and used strobe light at night and installed security cameras on property); Gassman v. Reason, 90 Mass. App. Ct. 1, 9 (2016) (repeated complaints from downstairs neighbor about loud piano playing by neighbor in upstairs apartment was insufficient- no evidence of fighting words or true threats and repeated noise complaints insufficient for intimidation intending to cause fear of physical harm or damage to property).

While stalking, criminal harassment, and civil harassment each require proof of three or more acts of willful and malicious conduct aimed at a specific person, these forms of “harassment” differ in significant ways. See A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 274-276 (2017).

Comparison: Three Act Conduct

Elements of Stalking, Criminal, Harassment and Civil Harassment

Stalking, G.L. c. 265, s. 43

1. Willful and malicious
2. Three or more acts
3. Directed at a specific person
4. Seriously alarms or annoys that person

And

5. Would cause a reasonable person to suffer substantial emotional distress

And

6. Makes a threat with intent to place the person in imminent fear of death or bodily injury

Criminal Harassment, G.L. c. 265, s. 43A

1. Willful and malicious
2. Three or more acts
3. Directed at a specific person
4. Seriously alarms that person

And

5. Would cause a reasonable person to suffer substantial emotional distress

Civil Harassment, G.L. c. 258E

1. Willful and malicious
2. Three or more acts
3. Directed at a specific person
4. Cumulative effect of act does, in fact, cause fear, intimidation, abuse, or damage to property

And

5. Each act done with the intent to cause fear, intimidation, abuse, or damage to property

Last updated:	October 20, 2025